PAPER C

 

Purpose: For Decision

 

Committee:      REGULATORY APPEALS COMMITTEE

 

Date:                28 FEBRUARY 2003

 

Title:                TREE PRESERVATION ORDER NO. 24, 2002 - COBURG COURT AND COCKERELL RISE, VICTORIA GROVE, EAST COWES                      

 

REPORT OF THE STRATEGIC DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES

 

 

SUMMARY

 

The trees are along Victoria Grove, and form part of an avenue of holm oaks which is a very significant part of the East Cowes landscape.  A TPO was made on 23rd September 2002. An application has been received to remove 4 of the trees. If the Order is to be confirmed this must be done by 23rd March 2003.

 

 

RECOMMENDATIONS

 

Confirm TPO / 2002 / 24 without modifications, and refuse consent to remove T1 -T4.

 

 

FINANCIAL IMPLICATIONS

 

As with any TPO, compensation could be claimed by an applicant if consent to remove trees or for works to the trees were refused, and the refusal resulted in loss or damage.

 

ENVIRONMENTAL IMPLICATIONS

 

Removal of the trees and wood would be a loss for the local landscape, and an erosion of the historic 19th century features of the town.

 

BACKGROUND

 

Making of Order

 

An application (including a copy of the engineer's report) to remove 3 of the trees now protected by TPO / 2002 / 24, and several other smaller younger trees at the western end of Coburg Court, was received on 6th June 2002, on the grounds of subsidence damage to the building.  However consent was refused to remove the 3 large mature holm oaks, because the Tree & Landscape Officer did not believe that evidence had been provided to show that the trees were the main factor in the subsidence - in the engineer's report, a leaking drain was considered to be the main cause of the damage.   However consent was granted to remove the young holm oaks growing below the mature holm oaks.

The trees form part of an avenue, probably planted in the 19th century, and which is still almost unbroken outside Acorn Gardens. The holm oaks at Acorn Gardens were protected by a Tree Preservation Order in 1993 (reference TPO / 1993 / 39), but at the time of the application the trees at Coburg Court were only protected by a condition attached to planning permission reference TCP / 17910. Central government guidance is clear that planning conditions should not be used for long-term protection of trees, when Tree Preservation Orders are expressly designed for that purpose.

 

An Order was therefore made on 23rd September 2002 to protect 10 trees alongside Victoria Grove: 5 holm oaks at Coburg Court and 4 holm oaks at Cockerell Rise, which partially continue the avenue to the west; and an oak in the grounds of Cockerell Rise.

 

The grounds for making the Order were: 'The trees are of high present and future amenity value and are visible from Victoria Grove and York Avenue. They are also important as a wildlife habitat, especially for birds and potentially for squirrels.'

 

Further applications to remove trees

 

Further letters were received:

 

1 letter from the original applicant, dated 29th August, and including a letter from a tree consultant, dated 15th July;

 

2 letters from the loss adjuster, dated 10th October and 29th October;

 

1 letter from the engineer, dated 24th January 2003.

 

The letter from the tree consultant did not provide any additional information or reasoned argument to explain their belief that the trees should be removed, and consent was again refused on 4th September 2002. Consent to remove the younger trees was confirmed.

 

The letters from the loss adjuster similarly did not provide any further evidence or adequate reasoning for removing the trees. The letter dated 10th October stated ' ... partial construction is now inevitable. This means that the Buildings Insurers of Coburg Court will face substantial increases in costs.... if you were to reconsider this matter and consent to the removal of all of the trees, this may well impact upon the replacement foundation depth for the reconstructed part of the structure and thus there is still an opportunity to apply common sense and reduce repair costs. If the trees remain then any foundation scheme must be designed to allow for the mature height of the trees, thus increasing costs even further.'

 

The reply dated 24th October 2002 pointed out that '... since, whatever the cause of the damage, the foundations will be underpinned, I remain to be convinced that it will be necessary to remove the 3 mature holm oaks.' The letter also referred again to the consent to remove younger trees:  'The holm oaks protected by the TPO are mature trees and I would not expect their water uptake to increase markedly in future years; while the other holm oaks, which could be removed under the consent already granted, are younger trees and I would expect them to increase their water uptake as they grow. My consent was therefore in line with the advice given by BRE Digest 298 (April 1999) "Low-rise building foundations: the influence of trees in clay soils".'

 

The reply from the loss adjuster dated 29th October 2002 stated '... If a new building was to be constructed on this site, without any trees to consider, then excavations to the existing foundation depth would be adequate. Therefore, without trees, as the foundation would be no deeper, there can be no justification to underpin. Therefore, the nuisance trees must be removed to avoid unnecessary expenditure.'

 

The reply dated 7th November 2002 stated '... the trees are there, and they were there when the building was built. The building regulations at the time might have been complied with, but if building regulations current now would require deeper foundations, then I do not see why these should not be provided now (in the form of underpinning), just as they would be for a new building.'

 

The engineer's letter dated 24th January 2003 requests consent to remove 4 trees, T1 - T4, and states ' ... The opening of cracks in late Summer/Autumn 2002 has been followed by an initial closing of cracks which appears to be accelerating with the increased wet weather. This behaviour is highly characteristic of damage caused by shrinkage of clay subsoil, and while I do not discount the contribution of other factors, I am now of the opinion that the Holm Oak trees on the roadside, Tree Nos. T1 to T4 on the plan accompanying TPO No.24 2002, opposite this damage have played a significant role in causing this damage, and that as the trees remain they will contribute to significant worsening of this damage in the longer term, in terms of its extent and magnitude....'

 

Unfortunately the letter was not accompanied by a revised report including the latest figures such as the monitoring of the cracks over the time since the last report, so it is not possible to follow the evidence or reasoning which has led to this belief, though certainly the cracks are much wider than they were at the time of the initial report and application.

 

In any case, as repairs to the foundations will be necessary, it is still arguable that they should include deepening (underpinning) which would allow the trees to remain. In addition, no advantage has been taken of the consent to remove the younger trees, which would have provided an opportunity to monitor any difference following their removal.

 

If consent is refused at this stage, and the Order is confirmed without modifications, it would still be open to the owners or their agents to apply for removal of the trees, and if clear evidence and reasoning for removal were provided, consent could still be granted at that stage.                                                                 

OPTIONS

 

1.         Grant consent to remove T1 - T4, and confirm TPO / 2002 / 24 with modifications to exclude T1 - T3, but with a replacement holm oak tree for T4 to be planted between T4 & T5.

 

2.         Refuse consent to remove T1 - T4, and confirm TPO / 2002 / 24 without modifications.

 

If the order is confirmed without modifications, it will ensure the continued existence of the trees for the immediate future.  If consent is granted to remove 4 trees, and the order is confirmed with modifications, it will set a bad precedent of allowing financial considerations to come before landscape or environmental considerations.  If the order is not confirmed, trees T1 - T4 would be removed, and the other trees might be under threat.

 

BACKGROUND DOCUMENTS

 

1.                  Planning permission for Coburg Court reference TCP / 17910.

2.                  Tree Preservation Order TPO / 1993 / 39.

3.                  BRE Digest 298 (April 1999) "Low-rise building foundations: the influence of trees in clay soils".

4.                  Application for works to trees at Coburg Court received 6th June 2002 [including copy of engineer's report reference 12443/D/001/R/RTW/WW - see 12 below].

5.                  Letter refusing consent to remove 3 mature holm oaks at Coburg Court dated 30th July 2002.

6.                  Application for works to trees at Coburg Court received 30th August 2002, including letter from tree consultant dated 15th July 2002.

7.                  Letter refusing consent to remove 3 mature holm oaks at Coburg Court dated 4th September 2002.

8.                  Tree Preservation Order TPO / 2002 / 24 made 23rd September 2002.

9.                  Letter from loss adjuster, dated 10th October 2002, received 15th October 2002.

10.              Letter in reply to loss adjuster dated 24th October 2002.

11.              Letter from loss adjuster, dated 29th October 2002, received 31st October 2002.

12.              Letter in reply to loss adjuster dated 7th November 2002.

13.              Letter from engineer, dated 24th January 2003, received 28th January 2003, and including copy of original report reference 12443/D/001/R/RTW/WW.

 

 

 

 

 

M J A FISHER

Strategic Director

Corporate and Environment Service